Kulbhushan Jadhav death sentence hearing at ICJ at 1.30pm: Here's how India, Pakistan are planning their cases

The International Court of Justice (ICJ) will hold public hearings on Monday in the case of retired Indian Navy officer Kulbhushan Jadhav, who has been sentenced to death by a Pakistani military court. The announcement was made by ICJ on 10 May, a day after it stayed Jadhav's execution following India's initiation of proceedings against Pakistan, accusing the latter of "egregious violations of the Vienna Convention on Consular Relations". According to the ICJ statement, an oral observation by India will begin at 10 am (1.30 pm IST) and go on till 11.30 am, following which oral observation by Pakistan will begin at 3 pm and is expected to go on till 4.30 pm.

The ICJ will have an open hearing on the Jadhav execution case involving India and Pakistan at The Hague. With the court involved, it is no longer a battle of bilateral wills. Also, the case has strong ramifications for India which has never allowed to make the bilateral issue with Pakistan multi-lateral. The last time it did so was in 1971. Of late, several countries seem to have taken up the cry to "interfere" in resolving the Kashmir dispute.

"The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings on Monday, May 15, 2017...in the proceedings instituted by India on May 8, 2017 against Pakistan. The hearings will be devoted to the request for the indication of provisional measures submitted by India," the ICJ said in a release.

India had told ICJ that Jadhav "will be subjected to execution unless the court indicates provisional measures directing the government of Pakistan to take all measures necessary to ensure that he is not executed until th(e) Court's decision on the merits" of the case.

India pointed out that Jadhav's execution "would cause irreparable prejudice to the rights claimed by India".

File image of former Indian naval officer Kulbhushan Jadhav. PTI

File image of former Indian naval officer Kulbhushan Jadhav. PTI

Noting that India has been informed by the ICJ that an action has been initiated on "provisional measures" sought by New Delhi, External Affairs Ministry spokesperson Gopal Baglay in New Delhi said there is "legal juridical procedure" that will be followed.

Earlier, the ICJ president wrote to the Pakistani prime minister, saying, "In my capacity as president of the court,.. I call upon your excellency's government, pending the court's decision on the request for the indication of provisional measures to act in such a way as will enable any order the Court may make on this request to have its appropriate effects."

On whether the "provisional measures" granted by the ICJ including a halt to Jadhav's execution was binding on Pakistan, Baglay referred to the clauses in ICJ rules which said "a request for the indication of provisional measures shall have priority over all other cases".

India had submitted that it has information that Jadhav was "kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy and was then shown to have been arrested in Baluchistan" on 3 March, 2016, and that Indian authorities were notified of that arrest on 25 March, 2016, a ICJ press release had said on Sunday.

Jadhav, 46, was given the death sentence by the Field General Court Martial in Pakistan last month, evoking a sharp reaction in India, which warned Pakistan of consequences and damage to bilateral ties if the "pre-meditated murder" was carried out. Jadhav was sentenced to death for "espionage and subversive activities".

India acknowledged that Jadhav had served with the navy, but denied that he has any connection with the government. India has also handed over to Pakistan an appeal by Jadhav's mother, initiating a process to get his conviction overturned.

Pakistan may not accept ICJ's jurisdiction

Pakistan may not accept the jurisdiction of the ICJ, which has stayed Jadhav's execution, a media report said.

According to Dunya News, the attorney general of Pakistan was briefed on Jadhav's case after the ICJ stayed his execution of the 46-year-old Indian, who has been sentenced to death by a Pakistani military court on charges of "spying".

In the briefing, it was stated that Pakistan does not accept the international court’s jurisdiction to order the state of Pakistan on issues that involve its national stability, the channel said.

File photo of people coming out in support of Jadhav's release. PTI

File photo of people coming out in support of Jadhav's release. PTI

Pakistan will pursue case forcefully, despite 'clear disadvantage'

A set of recommendations were send to the Prime Minister's Office and the Foreign Office, strategising how to plead Pakistan's point of view before the ICJ on Jadhav's conviction.

"We have sent our recommendations to the Prime Minister's Office and the Foreign Office," attorney general Ashtar Ausaf told The Dawn on Friday.

Ausaf said a robust reply would be advanced by Pakistan in a forceful manner, refuting all allegations levelled against it and also pointing out atrocities India was committing in Kashmir, the report said.

He said it was necessary to keep all measures and options confidential, so that the "other side might not know the strategy being devised".

Ausaf is expected to lead the Pakistan side before the ICJ. But he did not rule out the possibility of engaging someone from abroad, saying the endeavour would be to hire the best minds on international law to advance Pakistan's standpoint. However, he acknowledged that time was short since the hearing would begin on 15 May.

However, speaking to The Express Tribune, a senior Pakistani government official said that that Islamabad also feels it's "clearly at a disadvantage" in the case because the ICJ has scheduled hearings in the case as early as Monday.

Pakistan is "clearly at a disadvantage because of the paucity of time, logistical support and finding legal expertise", a senior government official told The Express Tribune.

India, Pakistan return to ICJ after 18 years

The previous case related to shooting down of Pakistan's maritime reconnaissance aircraft Atlantique by the Indian Air Force (IAF) in the Kutch region on 10 August 1999, killing all 16 naval personnel on board. Pakistan claimed the plane was brought down in its airspacee and sought $60 million in damages from India for the incident. A 16-judge bench of the court on 21 June, 2000 voted 14-2 to dismiss Pakistan's claim. The decision was announced by bench president Gilbert Guillaume of France at a public sitting. The verdict was final and there was no appeal.

The ICJ found that it has no jurisdiction to entertain the application filed by Pakistan on 21 September, 1999.

Public hearings in the case titled 'Aerial incident of 10 August, 1999 (Pakistan vs India)' lasted four days ending 6 April, 2000. Arguments centred on the court's jurisdiction in the case which had to be determined before its merits could be considered by the 16 judges.

The Atlantique case was ousted by the ICJ on the issue of jurisdiction and not on merits. Both parties had agreed that the question of jurisdiction would be decided first and only then would the issue of merits be taken up.

Guillaume said the court would first have to decide whether it had the jurisdiction to go into the case as contended by New Delhi after the Indian delegation led by the then Attorney General Soli Sorabjee, raised preliminary objections to its jurisdiction.

Pakistan opened the first round of oral arguments, India replying them, and then Pakistan following with its second round, with India making its response thereto.

India argued that the court did not have jurisdiction in the matter, citing an exemption it had filed way back in 1974 to exclude disputes between India and other Commonwealth states, and disputes covered by multilateral treaties. Sorabjee told the court that Pakistan was "solely responsible" for the incident and Islamabad must "bear the consequences of its own acts."

Pakistan's Attorney General Aziz Munshi had sought a speedy resolution, saying its application had to be concluded quickly so that it did not remain an irritant in Indo-Pak relations.

Pakistan had also sought to politicise the case by referring to the Kashmir issue, the Kargil conflict, Indo-Pak relations and alleged motives for the shooting. Pakistan wanted the court to intervene while India was opposed to its assumption of jurisdiction on the basis of Islamabad's application. It urged the court to "dismiss the objections raised by India and accept its jurisdiction." India maintained that none of Pakistan's arguments is 'sound' and does not provide a basis for invoking the court's jurisdiction.

Sorabjee expressed happiness with the court's verdict. "We are very happy. The court has accepted all our contentions," he had said. Former supreme court judge B P Jeevan Reddy and Pakistan's former Attorney General Syed Sharifuddin Pirzada were co-opted into the bench as ad-hoc judges.

As per ICJ rules, when it does not include a judge possessing the nationality of the state party to a case, the state may appoint a person to sit as a judge ad-hoc for the purpose of the case.

The court also recalled that its lack of jurisdiction does not relieve States of their obligation to settle their disputes by peaceful means.

The choice of those means admittedly rests with the parties under Article 33 of the UN Charter, it said, adding, they are nonetheless under an obligation to seek such a settlement, and to do so in good faith in accordance with the Charter.

As regards India and Pakistan, that obligation was restated more particularly in the Simla Accord of 2 July 1972. Moreover, the Lahore Declaration of 21 February 1999 reiterated "the determination of both countries to implementing the Simla Agreement," it said.

Accordingly, the court reminded the parties of their obligation to settle their disputes by peaceful means, and in particular, the dispute arising out of the Atlantique incident in conformity with the obligations which they have undertaken.

With inputs from agencies

Updated Date: May 15, 2017 12:45 PM

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